Nearly 100 law professors from top universities nationwide, including Wake Forest University, signed a letter advising President Barack Obama that the executive branch has the authority to defer deportation of young immigrants — just weeks before the president announced plans to do so.
"General authority for deferred action exists under Immigration and Nationality Act … which grants the Secretary of Homeland Security the authority to enforce the immigration laws," the letter says.
"Though no statutes or regulations delineate deferred action in specific terms, the U.S. Supreme Court has made clear that decisions to initiate or terminate enforcement proceedings fall squarely within the authority of the Executive."
Hiroshi Motomura, a Susan Westerberg Prager law professor at UCLA, drafted the letter. In a phone interview, he countered criticism that Obama overstepped his authority, made law instead of following it or created a type of amnesty.
"The president, as any prosecutorial executive, has the authority to determine exactly where to devote resources and exactly whom to prosecute," Motomura said. "The reason that this is part of the president's executive authority and fits within prosecutorial discretion is that we're not talking about giving people green cards. We're not talking about putting people on a path to citizenship. … It's not even legalization."
The letter, signed by 96 law professors from more than 70 universities, was spurred in part by the grass-roots immigrant advocacy group United We Dream. The letter highlights the role that such groups — many consisting mostly of unauthorized immigrants in their teens or 20s — have played in shaping the administration's handling of deportation cases.
"We had pushed for that letter," said Moises Serrano, 22, a Yadkin County resident who is a member of United We Dream's national coordinating committee. "People really don't know all the work we put into this campaign."
The letter was dated May 28. About two weeks later, on June 15, Obama made the announcement.
Motomura, discussing how the letter came about, said a number of students in Los Angeles might be affected by deferred action. Since Motomura teaches at UCLA, he became involved in providing background on some of the legal issues.
Lorella Praeli, 23, a Connecticut member of United We Dream's national coordinating committee, said the issue of the administration's authority came up during a regular conference call. Also on the call, she said, were such groups as the Mexican American Legal Defense and Educational Fund, the Yale Law School's Worker and Immigrant Rights Advocacy Clinic, the Asian Pacific American Legal Center and the National Immigration Law Center.
In early June, United We Dream leaders were planning to meet with White House legal counsel, group members said. Having a letter in hand with the opinion of law professors from the nation's top law schools would give the UWD more support in its push for executive action.
"It would be very hard for them (the White House) to say, 'Oh, this is still not legally possible for us to do what you want us to do,' " Praeli said. "It's hard to run away from 96 legal minds."
For his part, Motomura said the White House clearly has the authority.
"To be honest, I reacted to that with a little bit of disbelief," Motomura said, referring to the notion that the Obama administration did not have authority to grant deferred action. "That led to a request that they made to me to put that in writing and to see if that was just an opinion I had or an opinion that was much more broadly shared."
Motomura, using a listserv, sent a message to colleagues that he was drafting the letter, said Margaret Taylor, a Wake Forest University law professor. That's how her signature ended up on the letter.
"I believe it's good policy," Taylor said, adding that she supports the administration exercising discretion on how it prosecutes deportation cases related to young immigrants who were raised mostly in the U.S. but do not have permission to be in the country.
A deferred history
Deferred action is a prosecutorial tool that became public during the Nixon administration, as it tried unsuccessfully to deport John Lennon, who had become an outspoken critic of the Vietnam War.
At the time, government officials said they wanted to deport Lennon, a British citizen, because he had overstayed his permission to be in the U.S. Critics said the government was using the case as a pretext to oust one of the era's most compelling anti-war voices.
Lennon's defense attorney argued that federal immigration authorities had the prosecutorial discretion to defer action — then known as granting nonpriority status — to Lennon's deportation case.
The strategy worked.
Lennon stayed in the U.S. for years and eventually got a resident alien card, also known as a green card.
Obama's deferred action policy comes with limitations.
Among the requirements, such immigrants must be in school or have a GED.
They must be no more than 30 years old, have lived continuously in the U.S. for five years and have no serious criminal record. High school dropouts and immigrants with serious criminal records would probably not qualify.
About 51,000 immigrants in North Carolina probably could qualify, according to a 2010 report by the Migration Policy Institute.
Up to 1.4 million children and young adults nationwide could qualify, according to an estimate from the Pew Hispanic Center, a project of the Pew Research Center.
The letter's effect on the administration's announcement is not clear. But what is clear is that immigrant advocacy groups — including large national networks such as United We Dream and local groups such as El Cambio in the Winston-Salem area — have played a significant role in shaping U.S. immigration policy.
Besides winning intellectual support from the law professors, these groups have staged sit-ins, protests, marches, rallies and hunger strikes, calling on state and federal lawmakers to give young immigrants a pathway to legal residency and in-state college tuition.
Domenic Powell, a former member of the N.C. Dream Team and current member of the National Immigrant Youth Alliance, said the group's tactics changed in 2011, from trying to shape policy to putting a spotlight on actual deportation cases.
The shift happened after the DREAM Act was passed in the Democrat-controlled U.S. House but failed to make it past the Senate. Republicans and five Democrats, including North Carolina Sen. Kay Hagan, voted in December 2010 to filibuster the bill, effectively killing it.
In North Carolina, Martin Rodriguez and Uriel Alberto, two members of El Cambio, risked deportation to call attention to what they say is the plight of immigrants who could have benefited from the DREAM Act.
In September, Rodriguez, once a straight-A student in high school, was one of about 10 activists who took part in a protest in Charlotte, sitting in the middle of a busy intersection until police officers took them away in plastic handcuffs as the protesters chanted, "Education not deportation!"
In March, Alberto, once a high school track standout, and a few other protesters halted a state House committee meeting on immigration policy, announcing, "I refuse to be bullied and intimidated by this committee and choose to empower my community!"
"Anybody in North Carolina that has been in high school in the past 10 years — these (Alberto and Rodriguez) are the people you grew up with. This is part of your community. This is part of growing up in North Carolina," Powell said. "These are the people who were our classmates, our dates to the prom. This is who we grew up with in North Carolina. This is what North Carolina is now. Some of us have embraced that, and others have not. I believe most young people feel as I do that immigrants are part of our community and we should welcome them."
Critics of illegal immigration express concerns that affording leniency to young unauthorized immigrants, even if they did not choose to come to the U.S., would act as a catalyst for more illegal immigration. Critics say the leniency makes a mockery of the nation's laws and unfairly lifts responsibility from the parents who brought them here.
"I hate it for the children," said state Rep. Sarah Stevens, R-Mount Airy. "But if we allow them to stay, then what do we do about the parents?"
The advocacy groups say their purpose is clear because their options are limited — live on society's fringes, face deportation or protest.
In early June, in cities such as Denver, San Francisco, Atlanta, Cincinnati, Chicago and Charlotte, the National Immigrant Youth Alliance coordinated sit-ins — or "und-occupied" — at Obama's campaign offices, putting up signs that said, "Closed due to deportations."
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